Marquette Sports Law Review
Volume 20
Issue 2 Spring
Article 6
Can Summer Training Camp Practices Land NFL
Head Coaches in Hot Water?
Timothy Patrick Hayden
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Part of the Entertainment and Sports Law Commons
Repository Citation
Timothy Patrick Hayden, Can Summer Training Camp Practices Land NFL Head Coaches in Hot Water?, 20 Marq. Sports L. Rev. 441
(2010)
Available at: http://scholarship.law.marquette.edu/sportslaw/vol20/iss2/6
This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. For more information, please contact
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CAN SUMMER TRAINING CAMP PRACTICES
LAND NFL HEAD COACHES IN HOT
WATER?
TIMOTHY PATRICK HAYDEN*
I. INTRODUCTION
When a football player dies from heat stroke, Americans watch the news
telecast or read about the story. We think about all of the money the school,
organization, or coach may have to pay in a wrongful death lawsuit. We feel
sorrow for the player, and the player's family, but then we quickly forget
about it, and go about our day. However, what if it was your son that died
from heat stroke during a football practice? Envision your son telling you how
excited he is to be in the National Football League (NFL), and how he is
looking forward to the start of a new season. It is a hot summer day in training
camp, and your son is hitting, conditioning, and working as hard as he can.
The practice is nearing the three-hour mark, and your son is feeling hot, tired,
and sore. Now envision the head coach yelling at your son, telling him to
never give up, and to push through the pain. As the minutes pass by, your son
feels like he cannot go on, but the head coach continues to make the team
practice and condition. Your son eventually collapses, and is brought to the
hospital, with a core body temperature of 108 degrees Farenheit. You rush to
the hospital to find your son unconscious, clinging for life. Several hours later,
your son is pronounced dead from heat stroke. You were not even given the
chance to tell him you love him. As his parent, no amount of money would
matter to you. Most likely, you would vow to see that the head coach was put
in prison.
When Minnesota Vikings offensive tackle Korey Stringer (Stringer) died
from heat stroke after participating in a Vikings summer training camp
practice, a civil suit was filed against the Vikings, Vikings trainers and
coaches, and several other parties. I The absence of a criminal lawsuit was not
surprising. In contrast, when Pleasure Ridge Park High School offensive
* Compliance law clerk at Northern Illinois University. Mr. Hayden earned a B.A. in Political
Science, magna cum laude, from Benedictine University (2006), and a J.D. from Marquette
University Law School (2009). Mr. Hayden would like to thank his parents, Tim Hayden and Cherryl
Hayden, and his brother, Ryan Hayden, for all of their love and support.
1. Stringer v. Nat'l Football League, 705 N.W.2d 746, 748 (Minn. 2005).
MARQUETTE SPORTS LA W REVIEW
[Vol. 20:2
lineman Max Gilpin (Gilpen) died from heat stroke after a summer practice,
Pleasure Ridge Park High School head football coach David Jason Stinson
(Stinson) was arraigned on a criminal reckless homicide charge. 2 This was
possibly the first time in history that a head football coach was criminally
charged for the heat-related death of a player. 3 This lawsuit has led to
widespread debate as to whether criminal charges against a head football
coach for the heat-related death of a player are warranted or excessive.
This comment will analyze whether NFL head coaches can face criminal
charges for the heat-related death of a player, and the likelihood of being
found guilty. In making a judgment whether criminal charges can be brought
against an NFL head coach, several aspects will be analyzed, including: (1) the
prevalence of heat-related deaths for American citizens and football players;
(2) the culture of the NFL; (3) criminal and employment law that govern the
relationship between an NFL head coach and player when a heat-related death
occurs; (4) the history of criminal charges levied upon head football coaches
for the heat-related death of a player; (5) the likelihood that NFL head coaches
will face criminally negligent homicide charges and be found guilty for the
heat-related death of a player; and (6) the best method NFL head coaches can
use to avoid criminal liability and protect football players from heat-related
illnesses and death.
II. BACKGROUND AND HISTORY OF HEAT STROKE IN AMERICA
Exposure to heat causes Americans to suffer and die from heat stroke
every year, including football players. The combination of NFL culture and
summer heat during training camp increases the risk of NFL players dying
from heat stroke. While only one NFL player has died from heat stroke, the
risk for another heat stroke death in the NFL is present every season.
A. Exposure to Heat Can be Deadly
Every year Americans of all ages die from heat stroke. From 1999 to
2003, 3,442 Americans died from exposure to extreme heat. 4 For 2,239 of
these heat-related deaths, the primary cause of death was exposure to
excessive heat. 5 Of the 3,442 reported deaths, 3,401 of the reports listed the
2. Kentucky Coach Pleads Not Guilty in Player's Death, FOXNEWS.COM, Jan. 26, 2009, http://
www.foxnews.com/story/0,2933,483027,00.html.
3. Id.
4. Center for Disease Control & Prevention (CDCP), Heat-RelatedDeaths - UnitedStates 1999 2003, July 28, 2006, http://www.cdc.gov/ mmwr/preview/mmwrhtml/mm5529a2.htn.
5. Id.
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NFL HEAD COACHES IN HOT WATER?
age of the decedent. 6 Approximately seven percent of the decedents were less
than fifteen years of age, fifty-three percent were between ages fifteen and
sixty-four years of age, and forty percent were sixty-five years of age or
older. 7 Males accounted for sixty-six percent of these deaths.8 In addition to
individuals with chronic medical conditions, these statistics show that older
adults and young children are particularly susceptible to heat-related illnesses
and death. 9
While there are several types of heat-related illnesses, heat stroke is the
only heat-related illness that can be fatal. ' 0 Heat stroke occurs when the body
fails to control its temperature.II The body fails to control its temperature
because sweating ceases to occur, which prevents the body from cooling
down. 12 The body's temperature rises rapidly, often reaching 106 degrees
Fahrenheit or higher within ten to fifteen minutes. 13 Causal factors for heat
stroke include high temperature and humidity, exposure to direct sunlight, low
air movement, physical exertion, poor physical condition, use of certain
An
medications, and inadequate conditioning for hot temperatures.' 4
individual suffering from heat stroke displays symptoms such as hot dry skin,
high body temperature, chills, hallucinations, seizures, convulsions, headache,
slurred speech, and loss of consciousness. 15
Despite heat stroke being potentially fatal, heat stroke and other heatrelated illnesses can be prevented and treated. Prevention is the most
important factor to stop heat-related illnesses and death. Prevention and safety
measures include educating individuals about the signs, symptoms, and
treatment of heat-related illnesses, avoiding excessive heat when possible,
resting regularly, staying well hydrated, wearing clothing that is lightweight,
lightly colored, and loose fitting, and avoiding alcohol, caffeine, and heavy
meals. 16 If an individual is suffering from heat stroke, emergency treatment is
6. Id.
7. Id.
8. Id.
9. Id.
10. Center for Disease Control & Prevention, Heat Stress, CDC.GOV, Oct. 22, 2008,
http://www.cdc.gov/niosh/topics/ heatstress. [hereinafter CDCP].
ti. Id.
12. Id.
13. Id.
14. United States Department of Labor, OSHA Quick Card, OSHA.GOV, 2005, http://www.osha.
gov/Publications/ osha3154.html [hereinafter USDL].
15. CDCP, supra note 10; USDL, supra note 14.
16. USDL, supra note 14.
MARQUETTE SPORTS LA W REVIEW
[Vol. 20:2
necessary to prevent permanent injury or death. 17 Emergency treatment
includes calling 9-1-1, notifying superiors (manager, supervisor, etc.), moving
the individual to a cool area, providing cool drinking water, removing heavy
18
clothing, soaking their clothes and body in water, and fanning their body.
B. FootballPlayers and Heat Stroke
Heat stroke has hit the sport of football particularly hard. Football players
are affected by heat stroke every year. The 2008 heat stroke death of fifteen
year-old Max Gilpin, a high school football player from Pleasure Park High
School in Kentucky, has brought heat-related deaths of football players to the
forefront of the public eye. 19 However, professional and amateur football
players dying from heat stroke is not a recent phenomenon. From 1960
through 2008, 120 football players died from heat stroke. 20 Since 1995, heat
stroke caused the death of thirty-nine football players. 2 1 Furthermore, in
2008, six football players died from heat stroke. 22 It is important to note that
out of the 120 football players to die from heat stroke, only one was an NFL
football player. 23
C. NFL Culture and Summer Heat
While heat stroke poses a risk to all Americans, football players,
especially in the NFL, are at an increased risk of suffering from heat stroke.
Mottos such as "no pain, no gain" and "winning is everything" have
permeated the NFL creating a culture that has a combination of causal factors
that significantly increase a player's risk of suffering, and possibly dying, from
heat stroke. 24 First, NFL players get bigger, faster, and stronger each year.
Between 1920 and 1984, there were no more than eight players weighing 300
pounds or more at any given time during the season. 25 However, in 2006
17. CDCP, supra note 10.
18. CDCP, supranote 10; USDL, supra note 14.
19. Kentucky Coach Pleads Not Guilty in Player's Death, supra note 2; Rick O'Brien, Heat
Deaths and Football Coaches, PHILA. INQUIRER, Feb. 1, 2009, at E12.
20. FREDERICK 0. MUELLER & BOB COLGATE, ANNUAL SURVEY OF FOOTBALL INJURY
RESEARCH 8 (2008).
21. Id.
22. Id.
23. Vikings Star Korey Stringer Dies From Heat Stroke, FOXNEWS.COM, Aug. 1, 2001,
http://www.foxnews.com/ story/0,293 3 ,3 1059,00.html.
24. Michael Landis, The Team Physician: An Analysis of the Causes of Action, Conflicts,
Defenses and Improvements, 1 DEPAUL J. SPORTS L. CONTEMP. PROBS. 139, 150 (2003).
25. Carlos Frias & William M. Hartnett, Heavy Pressure: NFL Players Struggle With Weight
2010]
NFL HEAD COACHES IN HOT WATER?
there were 570 players weighing 300 pounds or more, accounting for almost
twenty percent of all players. 26 While this figure accounts for most linemen in
the NFL, the increase in size has translated to all positions. Since the NFLAFL merger in 1970, all players are approximately twenty-five pounds
heavier. 27 For example, offensive linemen average sixty-two pounds heavier,
defensive linemen average thirty-four pounds heavier, running backs average
seventeen pounds heavier, and quarterbacks average twenty-six pounds
heavier. 28 These gains in size and strength are a combination of29year round
training, better nutrition, legal supplements, and illegal substances.
In addition to larger players, the "warrior" mindset engrained in coaches
has increased the risk of heat stroke. Football coaches and traditionalists
staunchly adhere to the proposition that football players must maintain peak
30
physical condition to perform at the rigorous level that the game demands.
The reward for this great physical toll and risk of injury is the generous
financial compensation given to each player. 3 1 To get players to compete at
their highest level, coaches employ techniques "that could be deemed wanton
or grossly negligent by legal standards." 32 When referring to mandatory NFL
training camps, Gene Upshaw, the recently deceased Executive Director of the
NFL Players Association, stated, "[i]t seems that these men were forced to
endure an unbelievably demanding regimen that would have literally killed
lesser men." 33 Upshaw also stated that players participating in training camps
sustained damaged joints, broken bones, muscle tears, and extensive
bruising. 34 Even when team activities are deemed voluntary, coaches still
expect all players to participate and give maximum effort; coaches remind
players that they "better volunteer to be there" and "making the team is also
voluntary." 35 Despite using harsh coaching methods, coaches are celebrated
in society for getting the most out of their players because sports reflect the
Game, PALM BEACH POST, Oct. 29, 2006, available at http://www.palmbeachpost.com/sports
http://www.paimbeachpost.com/sports/contentlsports/epaper/2006/1 0/29/a lb-nflweight- 1029.html.
26. Id.
27. Id.
28. Id.
29. Id.
30. Kelly Basinger Charnley, Is the Football Culture Out of Bounds? FindingLiabilityfor Korey
Stringer'sDeath, 12 VILL. SPORTS & ENT. L.J. 53, 81-82 (2005).
31. Id.
32. Id.
33. Outside the Lines: TrainingAthletes to Death, ESPN.CoM, Aug. 5, 2001, http://espn.go.com/
page2/tvlistings/show7 ltranscript.html.
34. Id.
35. JOHN FEINSTEtN, NEXT MAN UP 97-98 (2005).
MARQUETTE SPORTS LA W REVIEW
[Vol. 20:2
36
American value system of hard work, perseverance, and character building.
The "warrior" mindset has been absorbed by the players as well. Players
gain each other's respect by playing through pain because they feel it shows
unity and the desire to win. 37 This leads players to compete despite knowing
they are seriously injured, even if they know playing may lead to long-term
health problems. 38 Players also push their bodies to the limits because they
feel that not doing so will result in them not making the team. 3 9 Players will
pressure doctors to clear them to play, or will simply hide the injury from
other players, coaches, and doctors. 40 If a player is unwilling to play through
41
the pain, other teams may be reluctant to sign the player.
Harsh coaching methods and players pushing through mental and physical
pain occur in every NFL training camp. Training camp is a series of summer
practices, often composed of two practices per day for three weeks, which are
used to get players into football shape. The playbook is introduced,
fundamentals are practiced to perfection, and players are conditioned for the
rigors of the NFL season in the hottest days of summer. Because training
camp summer practices have existed since the inception of professional
football approximately ninety years ago, training camp is considered an annual
42
right to make an NFL roster.
D. Korey Stringer
In 2001, the combination of larger players, NFL culture, and summer heat
led to the first and only heat stroke death of an NFL player. 4 3 Before the start
of Minnesota Vikings (Vikings) training camp, the Vikings head athletic
trainer spoke at a team meeting about heat and proper hydration, but did not
give players any written material concerning heat-related illnesses. 44 On July
45
29, 2001, the Vikings opened training camp with two practice sessions.
36. Charnley, supra note 30, at 83.
37. Id. at 85.
38. Justin P. Caldarone, Professional Team Doctors: Money, Prestige, and Ethical Dilemmas, 9
SPORTS LAW. J. 131, 142 (2002).
39. See BILL BATES & BILL BUTTERWORTH, SHOOT FOR THE STAR 111 (1994); Caldarone,
supra note 38, at 143.
40. Caidarone, supra note 3g, at 147; BATES & BUTTERWORTH, supra note 39, at I' L.
41. Caldarone, supra note 38, at 143.
42. Thomas R. Hurst & James N. Knight, Coaches' Liabilityfor Athletes' Injuries and Deaths,
13 SETON HALL J. SPORTS L. 27, 28 (2003).
43. Vikings Star Korey StringerDies FromHeat Stroke, supra note 23.
44. Stringer, 705 N.w.2d at 749.
45. Id. at 748.
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NFL HEAD COACHES IN HOT WATER?
During the morning session, which was conducted with players not in full
gear, Stringer, a six-foot-four-inch, three hundred thirty-five pound offensive
tackle, complained of an upset stomach and received an antacid. 4 6 Before the
afternoon practice, Stringer received an electrolyte supplement to help combat
47
heat-related problems he had encountered in previous camps.
Approximately forty-five minutes into the afternoon practice, with a heat
index of 109 degrees, Stringer vomited three times and was instructed by
offensive line coach Mike Tice to leave practice. 48 Later that night, Tice
called Stringer a "big baby" for struggling with the heat, and49mocked him with
a newspaper photo of Stringer doubled over during practice.
On July 31, the Vikings began their second day of training camp with a
morning practice. 50 Before the morning practice, teammates and other
members of the organization teased Stringer with the photo of him doubled
over during practice on Monday.5 1 Stringer, embarrassed by the teasing and
having to leave the first day early, was determined to finish practice on
Tuesday and set a better example for his teammates. 52 The morning practice
53
started at 8:45 a.m., with the heat index hovering around 90 degrees.
Stringer struggled with the heat during the morning practice, vomiting once,
sweating profusely, and falling to his knees several times. 54 At the conclusion
of the morning practice at 11:10 a.m., Stringer fell to the ground and lay on his
back, sweating heavily. 55 After spending time in the Viking's air-conditioned
trailer, Stringer was taken by ambulance to Immanuel St. Joseph's Hospital at
12:24 p.m. 56 Upon admission, Stringer had a temperature of 108.8 degrees
57
Fahrenheit, was unconscious, and had a heartbeat of 148 beats per minute.
After the second day of training camp was complete, eleven Vikings players
were treated for heat-related illnesses. 58 At 1:50 a.m. the next morning,
46. Id. at 749.
47. Id.
48. Id.
49. Charnley, supra note 30, at 56.
50. Stringer, 705 N.W.2d at 750.
51. Donald T. Meier, Note, PrimaryAssumption of Risk and Duty In Football Indirect Injury
Cases: A Legal Workout From the Tragedies on the Training Ground for American Values, 2 VA.
SPORTS & ENT. L.J. 80, 98 (2002).
52. Id. at 97-98.
53. Stringer,705 N.W.2d at 750.
54. Id.
55. Id.; Vikings Star Korey StringerDies From Heat Stroke, supra note 23.
56. Stringer,705 N.W.2d at 753.
57. Id. at 753.
58. Id. at 750 n. 6.
448
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[Vol. 20:2
Stringer died from heat stroke. 59 After Stringer's death, his wife filed a civil
suit against the Vikings, Vikings trainers and coaches, and several other
parties. 60 No criminal charges were ever filed.
III. CRIMINAL AND EMPLOYMENT LAW
Both criminal law and employment law govern the situation when an
employee dies while at work. If the employee's death is inadvertent,
employers and supervisors facing criminal penalties are typically charged with
criminally negligent homicide. 61 Additionally, if an employee dies from
exposure to excessive heat, employment law duties can result in employers
and supervisors facing criminally negligent homicide charges. 62
A. CriminallyNegligent Homicide
Criminally negligent homicide is commonly the lowest grade of
Criminally negligent homicide primarily seeks to punish
homicide. 63
inadvertent homicide. 64 To find an individual guilty of criminally negligent
homicide, two elements must be proven: (1) that the individual acted with
criminal negligence; and (2) that the individual caused the death of another
person. 65 A person acts with criminal negligence to a material element of an
offense when:
he should be aware of a substantial and unjustifiable risk that
the material element exists or will result from his conduct.
The risk must be of such a nature and degree that the actor's
failure to perceive it, considering the nature and purpose of his
conduct and the circumstances known to him, involves a gross
deviation from the standard of care that a reasonable person
would observe in the actor's situation.66
An individual acting with criminal negligence acts with such a blatant breach
59. Id. at 753.
60. Id. at 748.
61. MODEL PENAL CODE § 210.4 (1962).
62. United States Department of Labor, Acceptable Methods to Reduce Heat Stress Hazards in
the Workplace, May 28, 2004, available at http://www.osha.gov/pls/oshaweb/owadisp.show_ docume
=
nt?pjtable= INTERPRETATIONS&pid 24008 [hereinafter USDL].
63. CRIMINAL LAW DESKBOOK 3.02(8)(a) (2008).
64. MODEL PENAL CODE § 210.4.
65. CRIMINAL LAW DESKBOOK, supra note 63.
66. MODEL PENAL CODE § 2.02 (1962).
2010]
NFL HEAD COACHES IN HOT WATER?
449
of duty that courts can assume the criminal defendant acted with intent to
injure. 67 The act lacks proper regard for human life to such a degree that
"judicial conscience does not revolt at labeling it criminal." 6 8 Thus, criminal
liability requires a much higher degree of negligence than tort liability.
Criminally negligent homicide requires that the actual cause of death was
foreseeable. 69 This principle was established in New York v. Roth 7° and New
York v. Formica.7 1 In Roth, Adam Keator was an employee who was killed in
an explosion while he was pressure washing a tank trailer. 72 James
Domermuth (president), David Roth (district manager), and Lance Wilson
(operations manager) were corporate employees charged with criminally
negligent homicide for Keator's death. 7 3 The court dismissed the criminal
negligence charges against all three individuals because the actual triggering
cause of the explosion was not foreseeable. 74 A fire investigator testified that
he thought the triggering cause of the explosion was the use of the pressure
75
washer, which shattered a light leading to a spark and ignition of vapors.
However, the fire investigator said that static electricity, heaters, steel tools,
and electrical panels all could have caused the explosion. 76 Thus, the actual
cause of the explosion was speculative, making it non-foreseeable.77
Formica adds to the principle that the actual cause of death must be
foreseeable by establishing that the totality of the circumstances present can
make the direct cause of death foreseeable. 78 In Formica, Kenneth Formica
was a partner in the Formica Construction Corporation. 79 On December 15,
2003, Formica was supervising a work site trench where Lorenzo Pavia was
working.8 0 Formica ordered Pavia to enter the trench and connect a sewer
pipe. 8 1 Pavia was killed when the trench collapsed. 82 With approximately
67. Id. § 2.02 n. 21.
68. Id.
69. People v. Roth, 176 A.D.2d 1186, 1187 (N.Y. App. Div. 1992); People v. Formica, 833
N.Y.S.2d 353, 356 (N.Y. Sup. Ct. 2007).
70. Roth, 176 A.D.2d 1186, 1187 (N.Y. App. Div. 1992).
71. Formica,833 N.Y.S.2d 353, 356 (N.Y. Sup. Ct. 2007).
72. Roth, 176 A.D.2d at 1186.
73. Id.
74. Id. at 1187.
75. Id.
76. Id.
77. Id.
78. Formica,833 N.Y.S.2d at 356.
79. Id. at 354.
80. Id. at 354-55.
81. Id. at 355.
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thirty years experience as a licensed contractor, Formica knew that both city
and federal regulations required shoring or sloping of the trench. 83 However,
the trench walls were vertical and not shored. 84 Furthermore, the road was not
closed to traffic, an excavator was operating at the edge of the trench, and the
soil was "pre-disturbed" and wet, all of which increased the likelihood of
vibrations collapsing the unstable soil. 85 The court found that the totality of
the circumstances supported the finding that Formica consciously disregarded
the risk of a trench collapse, or that he failed to perceive this substantial and
unjustifiable risk.8 6 The court also found that the totality of the circumstances
made the risk of a trench collapse clear and specific. 87 Thus, the court upheld
the criminally negligent homicide conviction against Formica because the
88
direct cause of death was foreseeable.
B. CriminallyNegligent Homicide and OSHA 's General Duty Clause
Violations of the Occupational Safety and Health Act (OSHA) can lead to
employers and supervisors facing criminal charges. OSHA was passed by
Congress in 1970 for the purpose of protecting the health and safety of all
employees. 89 OSHA applies to every employer. 90 While OSHA does not
have specific regulations regarding heat stress hazards, OHSA's general duty
clause protects employees from being exposed to serious physical harm caused
by excessive heat. 9 1 OSHA has invoked the general duty clause to punish
employers that have exposed employees to physical harm caused by
excessively hot work environments. 92 OSHA's general duty clause states that
each employer must "furnish to each of his employees employment and a
place of employment which are free from recognized hazards that are causing
93
or are likely to cause death or serious physical harm to his employees."
In certain situations, such as the inadvertent death of an employee, OSHA
penalties may be too inadequate to punish and deter employers and supervisors
82. Id.
83. Id. at 354-355.
84. Id. at 355.
85. Id.
86. Id.at 356.
87. Id.
88. Id.
89. Occupational Safety and Health Act, 29 U.S.C. § 651(b)(1) (2009).
90. Id.
91. USDL, supra note 62.
92. Id.
93. 29 U.S.C. § 654(a)(1); USDL, supra note 62.
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NFL HEAD COACHES IN HOT WATER?
from engaging in actions that led to the employee's death. Consequently,
some states are encouraging prosecutors and district attorneys to criminally
charge mid-level managers that create or refuse to correct unsafe work
For example, Virginia's Attorney General stated that
conditions. 94
manslaughter charges will be levied against employers and supervisors that
permit unsafe work conditions to exist and which cause the death of an
95
employee.
The prospect of employers and supervisors facing criminal charges for the
death of an employee pursuant to OSHA's general duty clause is demonstrated
in Sabine Consolidated v. Tantillo.96 In Tantillo, Joseph Tantillo was the
president of Sabine Consolidated, and was charged with criminally negligent
homicide. 97 Tantillo was charged with criminally negligent homicide because
he failed to shore and slope trench walls, causing the trench to collapse and
kill two employees. 98 The court stated that Tantillo had a duty to shore and
slope the trench walls pursuant to OSHA's general duty provision, which
requires employers to provide a reasonably safe and healthful work
environment, and to use methods and99safeguards reasonably necessary to
protect the life and safety of employees.
It is important to note that OSHA will not preempt state criminal law. 100
In Tantillo, the court addressed the issue of preemption. 10 1 The court stated
that Congress' purpose for creating OSHA was "to assure so far as possible
every working man and woman in the nation safe and healthful working
conditions and to preserve our human resources." 102 The court stated that the
application of criminal laws to conduct in the workplace does not hinder
OSHA's purpose of assuring every employee safe and healthful working
conditions. 103 Thus, the court held that OSHA will not preempt state criminal
law. 104 Multiple other state courts addressed 05this issue, and all have held that
OSHA does not preempt state criminal laws. 1
94. GIL FRIED & LORI MILLER, EMPLOYMENT LAW: A GUIDE FOR SPORT, RECREATION, AND
FITNESS INDUSTRIES 301-302 (1998).
95. Id.
96. Sabine Consolidated, Inc. v. Texas, 806 S.W.2d 553, 555 (Tex. Crim. App. 1991).
97. Id. at 302.
98. Id.
99. 29 U.S.C. § 654(a)(1) (2009); Sabine, 806 S.W.2d at 555.
100. Sabine, 806 S.W.2d at 559.
101.
Id. at 556-59.
102. Id at 555.
103. Id. at 560.
104. Id. at 559.
105. People v. Pymm, 563 N.E.2d 1 (N.Y. Ct. App. 1990); People v. Chicago Magnet Wire
MARQUETTE SPORTS LAW REVIEW
[Vol. 20:2
In addition to the general duty clause, OSHA has established numerous
acceptable methods to protect employees from heat-related illnesses. Some of
the acceptable methods include permitting workers to drink water at liberty,
creating a work schedule that decreases exposure to heat, and developing a
heat stress program. 106 The heat stress program should include employee
training about the effects of heat stress and how heat-related illnesses can be
prevented and treated, screening to identify health risks affected by excessive
heat, an acclimatization program for employees who have not been subjected
to hot working conditions for three or more days, and procedures to follow
107
when a heat-related emergency arises.
IV. HISTORY OF CRIMINAL CHARGES FOR HEAD FOOTBALL COACHES
While many cases have charged supervisors and managers with criminally
negligent homicide for the inadvertent death of another employee have been
decided, it is possible that there is only one case has been decided where a
head football coach was criminally charged for the inadvertent heat-related
death of a player. 10 8 On January 22, 2009, Stinson, head football coach of
Pleasure Ridge Park High School, was criminally charged for the heat-related
death of a player. 109 Stinson was charged with reckless homicide in Kentucky
for the heat stroke death of Max Gilpin, a fifteen year-old Pleasure Ridge Park
High School lineman. "10 On January 26, 2009, Stinson pleaded not guilty to
the reckless homicide charge. III Reckless homicide in Kentucky is analogous
to criminally negligent homicide in other jurisdictions because "reckless
112
homicide is the lowest level of criminal culpability in Kentucky."
Furthermore, the mental state required for criminal negligence is almost
Corp., 543 N.E.2d 962 (Ill. 1989); People v. Hegedus, 443 N.W.2d 127 (Mich. 1989);
Commonwealth v. Morris, 575 A.2d 582 (Pa. Super. Ct. 1990); People v. Brom, 541 N.E.2d 745 (Ill.
5th Dist. Ct. App. 1989); State ex rel. Comellier v. Black, 425 N.W.2d 21 (Wis. Ct. App. 1988).
106. See United States Department of Labor (USDL), Heat Stress: Hazards and Possible
Solutions, Feb. 8, 2008, availableat http://www.osha.gov/SLTC/ heatstress/recognition.html; CDCP,
supra note 10.
107. USDL, supra note 14.
108. See MAfTHEW J. MITrEN ET AL., SPORTS LAW AND REGULATION: CASES, MATERIALS AND
PROBLEMS 885-896 (2nd ed. 2009); GEORGE W. SCHUBERT ET AL., SPORTS LAW 281-283 (1986);
RAY YASSER ET AL., SPORTS LAW: CASES AND MATERIALS 659-682 (6th ed. 2006).
109. Kentucky Coach Pleads Not Guilty in Player'sDeath, supra note 2.
110. Brett Barrouquere, Ky. High School Coach Charged in Player's Death, ABC NEWS.COM,
Jan. 22, 2009, http://abc news.go.com/TheLaw/wireStory?id=6709773.
111. Kentucky Coach Pleads Not Guilty in Player'sDeath, supra note 2.
112. Reckless Homicide, KY. REv. STAT. ANN. § 507.050 (2009); Coach Was Wrong, But Was
He Criminal?,http://www.uslaw.com1ibrary/Criminal-Law/CoachWrong.Criminal.php?item=3619
14 (last visited Feb. 14, 2009).
2010]
NFL HEAD COA CHES IN HOT WATER?
identical to Kentucky's reckless mental state. A person acts recklessly in
Kentucky regarding a result or circumstance enumerated by a criminal statute
when:
he fails to perceive a substantial and unjustifiable risk that the
result will occur or that the circumstance exists. The risk
must be of such nature and degree that failure to perceive it
constitutes a gross deviation from the standard of care that a
1 13
reasonable person would observe in the situation.
Criminal charges against Stinson stemmed from a summer football
practice. After practicing for almost three hours on August 20, 2008, with a
heat index of 94 degrees, Stinson concluded practice by requiring his players
to run sprints up and down the field until someone quit. 114 The team sprinted
1 15
twelve times before a profusely sweating Gilpin collapsed on the field.
Gilpin was an offensive lineman that stood six-feet-two-inches and weighed
220 pounds, and had taken the supplement creatine and the stimulant
Adderall. 116 Approximately fifteen minutes before Gilpin collapsed, another
teammate collapsed. 1 17 Eyewitness accounts stated that Stinson denied his
players regular water breaks. "18 When Gilpin reached the hospital, his body
temperature was 107 degrees Fahrenheit. 119 Three days later, Gilpin died of
120
heat stroke.
12 1
At the conclusion of Stinson's trial, the jury found Stinson not guilty.
While the outcome of Stinson's criminal case sheds some light on the possible
charges that an NFL head coach could be convicted of for the heat-related
death of a player, Stinson's case is not analogous. NFL players and coaches
are adults working together in an employment relationship. The only
similarity between Stinson's case and a possible case facing an NFL head
113.
114.
Was He
115.
Was He
116.
Definition of Mental States, KY. REV. STAT. ANN. § 501.020(4) (2009).
Kentucky Coach Pleads Not Guilty in Player'sDeath, supra note 2; Coach Was Wrong, But
Criminal?,supra note 112.
Kentucky Coach Pleads Not Guilty in Player'sDeath, supra note 2; Coach Was Wrong, But
Criminal?,supra note 112.
Kentucky Coach Pleads Not Guilty in Player'sDeath, supra note 2.
117. Coach Was Wrong, But Was He Criminal?,supra note 112.
118. Coach Was Wrong, But Was He Criminal?, supra note 107; Kentucky Coach Pleads Not
Guilty in Player's Death, supra note 2.
119. Kentucky Coach Pleads Not Guilty in Player's Death, supra note 2.
120. High School Football Coach Charged in Player's Death, CNN.COM, Jan. 26, 2009,
http://www.cnn.com/ 2009/CRIME/0 1/26/football.coach.indicted/.
121. Coach Found Not Guilty in Death of Player, CNN.COM, Sept. 17, 2009, http://www.cnn.
com/2009/CRIME/09/ 17/kentucky. coach.trial/index.html.
MARQUETTE SPORTS LAW REVIEW
[Vol. 20:2
coach is that criminally negligent homicide can be charged against anyone,
regardless of their relationship.
V.
LIKELIHOOD OF CRIMINALLY NEGLIGENT HOMICIDE CHARGES FOR NFL
HEAD COACHES
NFL head coaches can be charged with criminally negligent homicide for
the heat-related death of a player. Roth, Formica, and Sabine demonstrated
that presidents, partners, managers, and supervisors can be charged with
criminally negligent homicide for the death of an employee.' 2 2 This is
because OSHA applies to all employers, and imposes the general duty that all
employers must "furnish to each of his employees employment and a place of
employment which are free from recognized hazards that are causing or are
likely to cause death or serious physical harm to his employees."' 123 In the
NFL, a head coach is the head supervisor of the team. The head coach is in the
best position to prevent injury to his players. 124 Furthermore, professional
football is an occupation, which falls under the purview of OSHA, and the
12 5
general duty clause.
NFL head coaches may also satisfy the elements of criminally negligent
homicide. First, if a player dies due to heat stroke during training camp, the
argument can be made that in certain circumstances, the head coach acted with
criminal negligence. Head coaches are aware of and encourage players to gain
strength and size, use legal supplements, and develop a "warrior" mentality.
Additionally, while coaches may not encourage the use of illegal substances,
they are aware that this takes place. 126 With these heat illness risk factors
present, coaches hold rigorous training camps during the hottest days of
summer, with some camps taking place in hotter climates, and some camps
having greater intensity and length than that of other camps. Thus, a player
dying from heat stroke is foreseeable. In addition, heat stroke is a substantial
and unjustifiable risk, and the circumstances formerly listed may involve a
gross deviation from the standard of care that a reasonable NFL head coach
would use in that situation. For example, some may believe a reasonable head
122. People v. Roth, 176 A.D.2d 1186, 1187 (N.Y. App. Div. 1992); People v. Formica, 833
N.Y.S.2d 353, 356 (N.Y. Sup. Ct. 2007); Sabine Consolidated, Inc. v. Texas, 806 S.W.2d 553, 555
(Tex. Crim. App. 1991).
123. 29 U.S.C. § 654(a)(1); USDL, supra note 62.
124. Chamley, supra note 30, at 62-63.
125. Daniel Engber, Does OSHA Keep Tabs on the NFL?, SLATE, Feb. 3, 2006, http://www.slate.
com/id/2135433/.
126.
MICHAEL S. BAHRKE, PERFORMANCE ENHANCING SUBSTANCES
12 (2002).
N SPORT AND EXERCISE
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NFL HEAD COACHES IN HOT WATER?
coach would determine that conducting high intensity three-hour training
camp practices in the extreme heat of Arizona during the hottest hours of the
day is a gross deviation from the standard of care. In contrast, others may
believe that a reasonable head coach would determine that conducting this
same type of practice in the much cooler climate of Green Bay, Wisconsin is
not a gross deviation from the standard of care. However, all would likely
believe that a reasonable head coach would determine that denying players
access to water during training camp always involves a gross deviation from
the standard of care. Thus, it can be argued that in some instances a coach
may engage in criminal negligence and cause the death of a player because the
head coach is in direct control of practice length, intensity, and safety
measures employed.
Despite possibly fulfilling the elements of criminally negligent homicide,
it is unlikely that NFL head coaches would face negligent homicide charges or
be found guilty if a player dies from heat stroke. There are four reasons for
this conclusion. First, courts have generally recognized that "the law should
not place unreasonable burdens on the free and vigorous participation in
sports."' 127 Coaching methods that seem cruel and harsh, which could lead to
criminal charges in any other context, are not only tolerated, but
encouraged. 128 For example, if an employer were to scream at employees in
extreme heat, making them run until exhaustion, and hit others repeatedly,
criminal charges would certainly follow. However, a coach directing his
players to engage in this behavior is seen as getting maximum effort out of the
players and preparing the team for success. As a result, charging an NFL head
coach for the heat stroke death of a player would present a significant
departure from comparable scenarios in which criminally negligent homicide
charges have been brought. 129 There is no precedent for charging an NFL
has
head coach with criminally negligent homicide. Thus, an NFL head coach
30
1
player.
a
of
death
stroke
heat
the
for
convicted
never been criminally
Second, it would be highly difficult for courts to draw the line between
permissible coaching and criminally negligent behavior. 131 For example, are
127. Nabozny v. Barnhill, 334 N.E.2d. 258, 260 (111.App. Ct. 1975).
128. Timothy B. Fitzgerald, Comment, The "Inherent Risk" Doctrine, Amateur Coaching
Negligence, and the Goal ofLoss Avoidance, 99 Nw. U. L. REV. 889, 890-91 (2005).
129. Amanda Sherman, Football Death Leads to Reckless Homicide Charges: Kentucky
Embarks on Unprecedented Case, ALBANY GOV'T L. REV. FIREPLACE, Feb. 23, 2009, available at
http://glrfireplace.albanygovernmentlawreview.org/2009/02/23/football-death-leads-to-recklesshomic
ide-charges-kentucky-embarks-on-unprecedented-case.
130. Kentucky Coach Pleads Not Guilty in Player'sDeath, supra note 2.
131. Aaron Stringer, Coach Chargedfor Heat Stroke Death of Player, WILLANMETTE SPORTS L.
BLOG, Feb. 19, 2009, http://blog. willamette.edu/wucl/journals/sportslaw/2009/0 l/coach-charged-for
MARQUETTE SPORTS LAW REVIEW
[Vol. 20:2
five 120 yard sprints permissible, but six 120 yard sprints criminally negligent;
or is performing five 120 yard sprints in 92 degree heat permissible, but
performing five 120 yard sprints in 94 degree heat criminally negligent?
Third, courts follow the first and second approaches above because
imposition of criminal liability for ordinary careless conduct while engaged in
vigorous participation could ruin the integrity of the game. 132 Vigorous
participation in sports would be significantly reduced if those involved with
133
If
the game could face criminal charges for ordinary careless conduct.
vigorous participation no longer occurred in sports, particularly football, the
nature and integrity of the game would be destroyed.
Fourth, training camp and practicing in extreme heat have taken place
since the inception of the NFL, with only one NFL player dying from heat
stroke.1 34 Training camp exists to prepare football players for the rigors of
one of the most physically demanding sports known to man. Head coaches
have an obligation to get players in peak condition. Players perform at their
best, stay healthy, and protect themselves from opposing players only if they
are in excellent shape. Over time, not only have training techniques been
perfected to produce the most efficient football players, but safety measures
have been honed, and continue to be honed, every year to keep players safe
and healthy. These safety measures include protection from heat-related
illnesses, such as providing ample water and sports drinks, clothing to combat
hot conditions, cooling trailers, taking weight measurements before and after
practice to ensure that the player replaced fluids lost, and instructing trainers,
players, and coaches on how to prevent, recognize, and treat heat-related
illnesses. Application of these safety measures has resulted in Stringer being
the only NFL player to die from heat stroke during the approximately ninety135
year history of the NFL, making heat stroke deaths almost nonexistent.
While the first three reasons listed above may help to explain why Vikings
head coach Dennis Green did not face criminally negligent homicide charges
for Stringer's death, the fourth reason listed above is the primary reason it
would be difficult to convict Green of criminally negligent homicide. The
Vikings use of safety precautions to prevent, recognize, and treat heat-related
illnesses were extensive. These safety precautions included providing water
and sports drinks, ice wrapped towels, portable water containers with pumps to
spray players, keeping a first-aid trailer at 62 degrees on site, and providing
_heatstroke.php.
132. Foronda v. Haw. Int'l Boxing Club, 25 P.3d 826, 840 (Haw. Ct. App. 2001).
133. Id.
134. Hurst & Knight, supra note 42, at 28.
135. Hurst & Knight, supra note 42, at 28.
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NFL HEAD COACHES IN HOT WATER?
training to players, coaches, and trainers regarding heat-stress hazards.1 36 In
addition, the Vikings practices were not harsher than other typical training
camps, Stringer was an NFL veteran and fully understood the rigors he would
37
face at training camp, and Green never acted to intentionally harm Stringer. 1
Thus, if a criminally negligent homicide charge was brought against Green or
any other NFL head coach, these heat-related illness precautions would help
the head coach avoid being found guilty.
For an NFL head coach to be found guilty of criminally negligent
homicide, the head coach would likely have to engage in egregious behavior.
An individual acting with criminal negligence involves such a blatant breach
of duty that courts can assume the criminal defendant acted with intent to
injure. 138 This act lacks proper regard for human life to such a degree that
"judicial conscience does not revolt at labeling it criminal."1 39 Thus, criminal
40
charges are rare when a death from a heat-related illness occurs in athletics. 1
To rise to the level of criminal culpability for criminally negligent homicide,
NFL head coaches would likely have to deny players access to water, force
players to practice until multiple players collapsed or suffered from heat
stroke, or eliminate safety measures employed to prevent heat-related
illnesses. 14 1 Since these three scenarios have almost no probability of
occurring, NFL head coaches will likely never be found guilty of criminally
negligent homicide for the heat-related death of a player.
VI. MOST EFFECTIVE METHOD TO AVOID CRIMINAL LIABILITY
Although only one NFL player has died from heat stroke, every year
numerous NFL players suffer from heat-related illnesses. Thus, the potential
for the NFL to suffer another heat-related death is present every year. If
criminal cases similar to Stinson's proliferate across the amateur sports
landscape, NFL head coaches may face criminally negligent homicide charges
if a player dies from heat stroke because criminal charges can be brought
against anyone, regardless of whether the players are employees or students.
Therefore, it is paramount for NFL head coaches to know how to protect
136. Meier, supra note 50, at 92; No Citations: State Officials Won't Penalize Vikings in
Stringer's Death, SI.CoM, Nov. 1, 2001, http://sportsillustrated.cnn.com/football/news/2001/ 11/01/vi
kings _stringer-ap/.
137. Hurst & Knight, supra note 42, at 49.
138. MODELPENALCODE § 2.02 n. 21.
139. Id.
140. Barrouquere, supra note 110.
141. Coach Was Wrong, But Was He Criminal?, supra note 112; High School Football Coach
Chargedin Player's Death,supra note 120.
MARQUETTE SPORTS LA W REVIEW
[Vol. 20:2
themselves from criminal liability if a player dies from heat stroke.
The most effective way for NFL head coaches to protect themselves from
criminal liability and to protect their players from heat-related illnesses and
death is to implement a strong heat-related illness prevention program. The
following procedures for the program are an amalgamation of procedures
employed by NFL teams and recommendations by the Center for Disease
Control and Prevention.
This program should include an educational
component and operational procedures to be followed at all times. The
educational component should begin with distributing concise material to
coaches and players to educate them about heat-related illnesses. Material
should be concise because material that is too lengthy or complex will likely
not be read and understood in its entirety. These materials should be
distributed one month before training camp begins. If a coach or player joins
the team less than one month before training camp begins, or at any point
during the regular season, materials should be distributed immediately.
Furthermore, this material should be redistributed yearly to every coach and
player.
The materials distributed must include separate sections that address heat
stroke, heat exhaustion, and heat syncope. 142 Each section must include a
definition of the specific heat-related illness, symptoms, methods of
prevention, and first-aid procedures to follow if an individual is suffering from
the illness. In addition to distribution of material, the team doctors or trainers
must give a presentation to all players and coaches at a team meeting the night
before training camp is scheduled to begin. Finally, postings similar to OSHA
"quick cards" in prominent areas should be made. 143 An OSHA "quick card"
is an 8 x 11 inch sheet of paper that contains a definition of a particular
illness, symptoms, methods of prevention, and first aid techniques. 144 The
postings for the NFL should mainly focus on heat stroke, because heat stroke
can be fatal. Each posting should be 8 x 11 inches, and should have the
definition of heat stroke, symptoms, methods of prevention, and first-aid
procedures.
The operational procedures should begin with team doctors and trainers
45
screening players for the potential of suffering from heat-related illnesses. 1
Team doctors and trainers should take height and weight measurements, body
fat counts, know the medical history of each player, and what prescriptions
and supplements each individual athlete is taking. Screening players will alert
142. CDCP, supra note 10.
143. USDL, supra note 14.
144. USDL, supra note 14.
145. CDCP, supra note 10.
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NFL HEAD COACHES IN HOT WATER?
team doctors and trainers as to which players are at-risk for suffering from
heat-related illnesses. This allows doctors and trainers to monitor at-risk
players closely, and to advise these players on individually tailored methods to
employ to avoid heat-related illnesses.
Teams, coaches, and trainers must follow operational procedures once
practicing in summer heat begins. Before and after practice, players should be
weighed. The loss in weight largely indicates a loss in fluids, which must be
replaced before the player begins another practice session. 146 Coaches should
build up the intensity and length of practices over ten to fourteen days,
allowing players to acclimate to the higher temperatures. 14 7 Practice intensity
and duration should be adjusted based on the heat index temperature. Days
that have a heat index of 105 degrees Fahrenheit dramatically increase the risk
of heat-related illnesses. Thus, on days with a 105 degree Fahrenheit heat
index, players should not be in shoulder pads and helmets, and coaches should
curtail the length and intensity of practice. In addition, on hot summer days
players should drink sixteen ounces of water before practice, and eight ounces
Players should also wear
every twenty minutes while practicing. 148
Most
lightweight clothing that is lightly colored and breathable. 149
importantly, during all practices water and electrolyte sports drinks must be
made available to all players at all times. Hydration must never be withheld.
Failure to provide water to all players at all times will significantly increase a
head coach's risk of being charged and found guilty of negligent homicide if a
150
player dies from heat stroke.
On the premises of every football practice site should be cooling locations.
These locations should include air conditioned locker rooms or an airconditioned cooling trailer. At all locations, each team must have cold tubs.
These cold tubs must be accompanied by a supply of ice. Players should be
encouraged to enter the cold tub after each practice. Furthermore, if a player
begins suffering a heat-related illness, the player should be immersed in the
cold tub immediately because immersing the body in cold water is the most
effective cooling method. I5 '
146. Preventing Heat-Related Illnesses, NFL.CoM, July 31, 2008, http://www.nfl.com/training
carnp/story?id=09000d5d8008612b&template=with-video&confirm-true.
147. Id.at 66.
148.
149.
150.
151.
Charnley, supra note 30, at 65.
Id.
High School Football Coach Chargedin Player'sDeath, supra note 120.
Charnley, supra note 30, at 65.
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[Vol. 20:2
VII. CONCLUSION
Heat stroke kills citizens of all ages and from all walks of life, including
football players, every year. In the NFL, summer heat during training camp
and NFL culture increase the risk of NFL players dying from heat stroke. In
typical employment settings, employees in positions of authority have been
charged and found guilty of negligent homicide if they ordered other
employees to engage in conduct that inadvertently proved fatal. 152 Regarding
heat, OSHA's general duty clause can be used to charge an employee with
negligent homicide for the heat-related death of another employee. 1 3 In the
sports setting, for possibly the first time in United States history, a head
football coach was brought to trial facing criminal charges for the heat stroke
death of a player.
If criminal cases similar to Stinson's proliferate across the amateur sports
landscape, NFL head coaches may face criminally negligent homicide charges
if a player dies from heat stroke. Although only one NFL player has died from
heat stroke, every year numerous NFL players suffer from heat-related
illnesses, which makes another heat-related death possible. However, it is
unlikely that an NFL head coach will face criminal charges for the heat related
death of a player for three main reasons. First, courts have generally
recognized that "the law should not place unreasonable burdens on the free
and vigorous participation in sports."' 154 Second, it would be highly difficult
for courts to draw the line where coaching methods go from typical hitting and
conditioning drills to criminally negligent behavior. 155 Third, courts follow
these two approaches above because the imposition of criminal liability for
ordinary careless conduct while engaged in vigorous participation could ruin
56
the integrity of the game. 1
Should an NFL head coach face criminal charges for the heat related death
of a player, it is unlikely that he will be found guilty because training camp
and practicing in extreme heat have taken place since the inception of the
NFL, with only one NFL player dying from heat stroke. During this almost
ninety-year span, training techniques and safety measures have been honed
every year to keep players safe and healthy. 157 These safety measures include
152. See People v. Roth, 176 A.D.2d 1186, 1187 (N.Y. App. Div. 1992); People v. Formica, 833
N.Y.S.2d 353, 356 (N.Y. Sup. Ct. 2007); Sabine Consolidated, Inc. v. Texas, 806 S.W.2d 553, 555
(Tex. Crim. App. 1991).
153. USDL, supra note 62.
154. Nabozny v. Barnhill, 334 N.E.2d. 258, 260 (Il1. App. Ct. 1975).
155. Coach Chargedfor Heat Stroke Death of Player,supra note 126.
156. Foronda v. Haw. Int'l Boxing Club, 25 P.3d 826, 840 (Haw. Ct. App. 2001).
157. Hurst & Knight, supra note 42, at 28.
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NFL HEAD COA CHES IN HOT WATER?
protection from heat-related illnesses.
If NFL teams and head coaches adopt and adhere to the heat-related illness
prevention program enumerated in Section VI, it is highly likely that NFL
head coaches will continue to avoid criminally negligent homicide charges if a
player dies from heat stroke. By following these educational and operational
procedures, an NFL head coach's actions would not amount to criminal
158
negligence because he would be aware of the substantial risk of heat stroke.
An NFL head coach's job is to prepare his football players for the rigors of an
NFL season. Given the risk factors for heat stroke known to the head coach,
his actions would not involve a gross deviation from the standard of care that a
reasonable NFL head coach would observe during summer training camp
practices if59 the educational and operational procedures in Section VI were
followed. 1
Finally, given what has been analyzed in this comment, if NFL teams
implement this heat-related illness prevention program that protects coaches
from legal liability and players from heat-related illnesses and death, other
professional and amateur sports programs will see the success of the NFL and
implement similar policies. Thus, implementation of this program could
create a domino effect, resulting in the most desired goal of all: eliminating
heat-related deaths from sports.
158. See MODEL PENAL CODE § 2.02.
159. See id.